Ashman, R (on the application of) v Parole Board & Anor

1. MR JUSTICE UNDERHILL: I am prepared to make a declaration that the claimant has suffered a breach of his rights under Article 5(4) of the European Convention on Human Rights by his continuing in detention beyond the expiry of the minimum term, without reasonable steps having been taken to assess whether his continued detention was justified.

2. I am not, however, prepared to make the further order sought by Ms Mushtaq, namely a mandatory order that a Parole Board hearing should take place within seven days, or indeed on any date earlier than 23rd November when the hearing has been fixed in any event. I accept the evidence advanced on behalf of the Secretary of State that to make such an order would be likely to cause great disruption and, more particularly, probable prejudice to other prisoners. I do not underestimate the prejudice to the claimant of losing the chance — not of course the certainty — of being released on licence even a week or two earlier than would otherwise be possible. But that is outweighed by the prejudice to others to which I have referred.

3. I do not regard it as necessary as an absolute that by way of relief he should have an order requiring a hearing forthwith. It is necessary to consider the overall interests of justice and the interests of other parties. The only order which I therefore intend to make is one for declaratory relief.

4. Anything else?

5. MR EADIE: My Lord, just on that, before any application my learned friend has to make, just for the record the evidence that I think my Lord ascribed to the Secretary of State --

6. MR JUSTICE UNDERHILL: Sorry, that was a slip of the tongue, I meant the Board. It was the evidence of Mr Ellitson and Mr McCarthy, I think.

7. MR EADIE: In the Ellitson case of Mr McCarthy.

8. MR JUSTICE UNDERHILL: Quite right.

9. MS MUSHTAQ: My Lord, that leaves the only issue of costs in this matter.

10. MR JUSTICE UNDERHILL: Yes.

11. MS MUSHTAQ: Given that my Lord has made a declaration that the claimant has sought, I wonder whether my Lord ought to order costs in favour of the claimant in this case.

12. MR JUSTICE UNDERHILL: Yes, you cannot resist that, can you Mr Eadie?

13. MR EADIE: My Lord, I do resist that.

14. MR JUSTICE UNDERHILL: Right.

15. MR EADIE: I resist it on this basis. The relief that was sought by the claimant in this case was twofold. Firstly, the declaration that my Lord has been content to make but secondly, and more importantly, the application for a mandatory order. The Parole Board's position in relation to the latter has been from the off that such an order was wholly inappropriate to be made and the Ellitson witness statement, or the McCarthy witness statement in Ellitson , was appended to the summary grounds.

16. MR JUSTICE UNDERHILL: Yes, but you have not made it clear that you would consent to a declaration until your skeleton yesterday?

17. MR EADIE: My Lord, that is correct and in the summary grounds the position was taken that there was a live issue on that. So if and in so far as costs were referable to that element of it, I fully accept that that part of it, as it were, is down to us, but the question would remain whether or not in the court's discretion it would be appropriate, for the sake of argument, to make an order that we pay the entirety of the costs, when a large part of the debate between the parties has been referable to the only order that actually would have made any practical difference to this prisoner, which is the application for mandatory relief.

18. MR JUSTICE UNDERHILL: Yes. Thank you.

19. Ms Mushtaq, I do not need to hear you on that. I accept of course that you have only partially succeeded, but you have succeeded. I do not regard the granting of a declaration as a mere formality. It is a real form of relief. It was only yesterday that it was clear that the Board would submit to a declaration. In those circumstances, it seems to me right that you should have your costs of the proceedings, including the costs of today.

20. MS MUSHTAQ: I am grateful, my Lord.

21. MR JUSTICE UNDERHILL: To be assessed on the standard basis.

22. MS MUSHTAQ: Yes, my Lord.

23. MR JUSTICE UNDERHILL: Unless of course you have come with a schedule, but it does not sound as though you have.

24. MS MUSHTAQ: I have not, my Lord, no.

25. MR JUSTICE UNDERHILL: Thank you very much.